Gardner v. Commonwealth , 134 Va. 681 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The decision of the whole ease upon appeal turns upon the following question:

1. Did the trial court err in admitting the testimony of Lipps, one of the companions of, and found along Avith, the accused in possession of the liquor at the time of their arrest, as evidence in rebuttal?

The question must be ansAvered in the negative for tAvo reasons:

First: The evidence introduced by the Commonwealth in chief was sufficient to make a prima facie case against the accused upon the charge of transportation of liquor. It waÍ not until the defense in reply introduced evidence tending to overturn such prima facie case that the Commonwealth had any need to introduce any further testimony. And the testimony of Lipps then introduced went merely to controvert the truth of the testimony which had been introduced by the accused. It did not go beyond the scope of that testimony. Therefore, the testimony of Lipps, to the effect that accused in fact transported a portion of the liquor, and that the story accused and Dean told on the witness stand was a fabrication, which the witness, the accused, and Dean had agreed upon prior to the trial, was, according to the customary and regular rule of procedure, properly admissible in evidence in rebuttal. Wigmore on Ev., secs. 1866-A, 1873 (3), 1873 (4), 2485 and 2486.

Secondly: At the time the Commonwealth rested, it did not know it could obtain the testimony of Lipps. Up to that time he had steadfastly adhered to the same statements which he and the accused and their companion, Dean, had theretofore made; and it was not until the accused had entered upon the introduction of evidence in defense that the Commonwealth was informed by Lipps that such statements had been concocted, and that he would no longer adhere to them, but would testify to the truth, which, as he then admitted for the first time, would be to the effect that said statements were false and concocted, as aforesaid, and that the accused, the witness and Dean were all guilty of the transportation of the liquor. Such being the circumstances, the testimony of Lipps was properly admissible at the stage of the trial at which it was introduced.

If the accused was taken by surprise by the testimony of Lipps being admitted at that stage of the trial, and had reasonable expectation of obtaining other witnesses to discredit the testimony of Lipps, that position should have been taken before the trial court and a reasonable delay of the trial asked for such purpose. But that course was not taken. The accused contented himself with adducing the testimony of himself and Dean in denial of the truth of the testimony of Lipps and the verdict of the jury stamped their approval upon the testimony of the latter. Therefore, under the well-settled rule on the subject, Lipps’ testimony must be taken to have been true, and, as it was properly admitted in evidence, the case must be affirmed.

Affirmed.